HKSAR v. TSOI CHING PON AND ANOTHER

DCCC 703/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 703 OF 2016

____________

REASONS FOR SENTENCE

1.  D1 and D2 both pleaded guilty to a joint charge of "Robbery". They robbed a 66-year-old man of his messenger bag.

Summary of Facts

2.  About 1:30 a.m. on 5 May 2016, Mr. LEUNG (PW2) was driving a taxi near Sheung Shui Spot, Sheung Shui.  He saw 2 males hailing so he stopped.  One of the 2 males (later identified as D2) boarded PW2's taxi and instructed him to go to Lok Ma Chau.

3.  About 1 minute later, a male (PW1 Mr. HO) approached PW2's taxi and asked PW2 for ways to get to Lok Ma Chau.  PW2 directed PW1 to take a bus from the housing estate nearby and PW1 walked away. D2 suddenly gave $20 to PW2 and asked him to wait for a while.  D2 alighted from the taxi and walked in the same direction as PW1.  D2 did not return.

4.  When PW1 reached Sun Fat Street, he was approached by D2 and another male (later confirmed to be D1), both offering to lead him to the bus stop at Choi Yuen Estate.  PW1 rejected their offer.

5.  PW1 soon re-encountered D1 and D2 at the end of the pedestrian footbridge near Choi Po Court.  PW1 asked D2 for further directions.  Instead of replying, D2 grabbed PW1 by his neck; pushed him onto the ground and started beating him.  D1 used a metal pipe to hit PW1's head and back several times, and then snatched his messenger bag.  D1 and D2 fled with PW1's messenger bag.  PW1 called the Police.

6.  PW1's wristwatch stopped at 1:40 a.m. as a result of the attack.  His messenger bag contained $10 in change and a phone book. PW1 sustained abrasions on his right hand and both elbows; swellings and tenderness on his head.

7.  D1 was arrested on 11 May 2016.  Under caution, he admitted having committed robbery under the instruction of "Fei Jai". D2 was arrested on 19 May 2016.

8.  In his video recorded interviews, D1 claimed that he met up with "Fei Jai" in the afternoon on 4 May 2016.  Fei Jai bought a metal pipe from a metal shop without explaining why.  Regarding the robbery, D1 claimed that Fei Jai grabbed the man by his neck and used the metal pipe to hit him.  D1 tried to snatch the man's messenger bag but it was Fei Jai who took it away from the man.  The whole incident lasted for 4 to 5 minutes.  D1 and Fei Jai then took a taxi to Fanling.  They searched the bag but found nothing valuable.  They threw the bag away and Fei Jai dropped the metal pipe on the grass bed at Pak Wo Road.  D1 admitted that Fei Jai calls him by his nickname "Yeung Jai".

9.  In his video recorded interview, D2 claimed that on 4 May 2016, his friend "Yeung Jai" asked D2 to accompany him to chase his ex-employer for money.  Yeung Jai suggested purchasing metal pipes and they each bought one (from the same shop mentioned by D1).  D2 discarded his metal pipe before they went to Sheung Shui.  Some time after midnight on 5 May, Yeung Jai suggested to rob someone and he chose the target.  D2 claimed that it was Yeung Jai who repeatedly hit the male victim on his head and grabbed his bag. D2 denied having attacked or touched the victim. 

10.  In an identification parade, PW1 positively identified D2 as the person who grabbed him by his neck and pushed him onto the ground.  Likewise, PW2 positively identified D2 as his passenger.

11.  The metal pipe (33 cm in length) used by D1 to hit PW1 was recovered at Pak Wo Road, Fanling.

Pre-sentence Reports

12.  Sentencing was adjourned pending Training Centre Suitability Reports on both defendants.  Before the adjournment, I have informed both defendants that the purpose of calling for reports was simply to keep all sentencing options open; immediate imprisonment is highly likely.  Both reports indicated that D1 and D2 are considered suitable for detention in a Training Centre.

Mitigation

13.  D1 is 19 and has a clear record.  His counsel Mr. YUEN submitted that D1 was 18 at the time of the offence.  He confessed to the Police upon arrest and took the Police to various relevant locations.  He also gave the particulars of D2 to the Police.  D1 is willing to be placed in a Training Centre.  Mr. YUEN invited the court to give D1 his last chance.

14.  D2 is 20 and has 1 conviction record, which included 3 offences related to violence.  His counsel Mr. KAN informed me that D2 and his fiancée has a baby daughter (1.5 years old).

15.  In mitigation, Mr. KAN made detailed submissions on D2's role in the robbery.  Mr. KAN explained that D1 asked D2 to accompany D1 to see D1's ex-employer.  They each carried a metal pipe for the purpose of seeing D1's ex-employer.  But they were unable to find D1's ex-employer, so D2 decided to leave.  This explains why D2 was in a taxi alone.  Whilst D2 was in the taxi, D1 called and asked D2 to follow the victim.  Mr. KAN stressed that before D2 boarded the taxi, he had already discarded his metal pipe.  When they were pursuing the victim, D2 did not know or expect that D1 still had a metal pipe in his possession.  Also, D1 hid the metal pipe under his shirt.  On this basis, Mr. KAN invited the court to sentence D2 on the basis of unarmed robbery.

16.  Finally, Mr. KAN submitted that although no trial was required in the present case, D2 has given an NPS to the Police and was accepted by the Prosecution to give evidence against D1.

Sentence

17.   Mr. YUEN accepted that this case is a head-bashing robbery. Mr. KAN submitted that it is not. He argued that unlike a piece of rock or a brick, the metal pipe in question is not an object which would cause serious injuries if it was used to hit someone's head. Prosecuting counsel Mr. CHEUNG has placed the metal pipe before me. It appears to be made of light weight metal such as stainless steel or aluminium. In terms of weight and length, it is similar to a baton used in relay races. I need not elaborate any further. Mr. KAN is plainly wrong in this regard. In the present case, someone did use this metal pipe to hit the victim's head. Regardless of the nature of the object used, it is a head-bashing robbery.

18.   Regarding the issue of whether or not D2 had agreed with D1 to commit an armed robbery, both Mr. CHEUNG and Mr. KAN have agreed to place D2's NPS before me. At the last few lines of paragraph 4, D2 clearly admitted that when they failed to find D1's ex-employer, they walked from Fanling to Sheung Shui. D2 discarded his mental pipe on the way and he saw D1 keeping his [metal pipe] on him but did not ask D1 why. Mr. KAN submitted that D1 and D2 made 3 agreements. First, to carry metal pipes to find D1's ex-employer. Second, to rob a passer-by, but was unable to find any target. Third, to rob PW1. Mr. KAN stressed that the 1^st and 2^nd agreements had ended when D2 boarded PW2's taxi. He argued that there is no evidence to suggest that D2 knew or could reasonably foresee that D1 still had the metal pipe with him and would use it to attack PW1.

19.   It may well be true that D1and D2 had 3 agreements, but Mr. KAN is looking at the evidence out of context. D2's knowledge of D1 having retained his metal pipe on him is continuous in nature. The so-called ending of "agreements" does not in any way indicate that D1 had abandoned his metal pipe or D2 had any basis to presume so. Notwithstanding the fact that D2 had decided to take a taxi home, the agreement to rob someone (namely a passer-by) was a continuous one because it was revived when they eventually identified PW1 as their target.

20.   Based on the reasons stated above, I will sentence both D1 and D2 on the basis of head-bashing robbery. According to the sentencing principles and guidelines laid down in SJ v MA Ping Wah [2000] 2 HKLRD 312 and in view of PW1's monetary loss and injuries, I adopt a slightly lower starting point of 6.5 years' imprisonment for both defendants.

21.   For D1, with the guilty plea, his sentence is reduced to 52 months. Since he gave the particulars of D2 to the Police, I will grant him a further discount of 2 months. I sentence D1 to 50 months' imprisonment.

22.   For D2, with his guilty plea and assistance to prosecution, he is entitled to a 40% discount[1]. I sentence him to 46 months' imprisonment.